CONSTITUTIONAL ASSOCIATION—PETITION OF JOHN BARKLEY. (Hansard, 27 March 1822)

Dr. Lushington

begged to call the attention of the House to a petition which he held in his band. The name of the petitioner was John Barkley, and he was 17 years of age. He was one of those individuals who had fallen victims to the proceedings of that society which had usurped the name of "constitutional." That society had not only brought the petitioner to trial, but had harassed him in the first instance, and had made him undergo a preliminary imprisonment. On the 4th of March last, the petitioner's trial came on before the Common Serjeant and a London jury. Before the trial commenced, his counsel objected to the jury on this ground, that they were not competent to give a fair verdict, because only two days before they had tried and convicted William Vamplew for publishing the identical libel for selling which the petitioner was indicted. The common serjeant was of opinion that the objection was not well-founded. He (Dr. L.) would, however contend that to compel a person to be tried by a jury which had already prejudged his case, was a violation of the first principles of justice. It was laid down by lord Coke, that no person was qualified to sit upon a jury, if he had already been party to a verdict in a cause where the same question had been tried, although between other plaintiffs and de- 1311 fendants. Now, had not the same question, in fact, been decided between other parties in the present case? All that Barkley's jury could try was, whether he had or had not published the libel; for that the work in question was a libel they had already declared by a previous verdict. What, he would ask, did the practice lead to, or rather what did it not lead to? Surely every man must bear in mind the libel bill passed after so much exertion by Mr. Fox—that bill by which juries recovered the rights and privileges which judges had usurped from them—the privilege of deciding for themselves not only as to the fact of publication, but also as to the question of libel or no libel. He (Dr. L.) declared that he knew of no greater blessing conferred upon England than Mr. Fox's libel bill; and yet that bill had been set at nought in this instance; for the jury who tried Barkley had decided before they went into the box as to the question of libel, and had only left to try the fact of publication. This, however, was not the only evil arising from the practice of which he complained. He was now about to speak to facts proved by the petition which he held in his hand—proved by the words of the foreman of Barkley's jury, (who complained heavily of the situation in which he had been placed)—and proved by the testimony of eye-witnesses, whose veracity was unimpeachable. The counsel for the prosecution, in his opening to the jury, said, "I recur to the speech which I made here three days since; that speech contained arguments which I am sure must satisfy you that the book in question is a libel, and there is no occasion, therefore, that I should farther occupy your time upon that head." And how was the counsel for the prisoner, who had not been present at the former speech, to reply to arguments which he had not heard? This was one part of the objection to this course of proceeding; but there were still greater evils attending upon it. The judge himself—and here he did say that he was bound to complain of the conduct of the judge; he complained that the conduct of the judge had not been upright, just, or impartial. The judge had distinctly told the jury, that he could not understand how they could form a different opinion upon Barkley's case consistently with their former verdict. So, the judge actually reminded the jury of their former verdict, instead 1312 of endeavouring to get rid, if possible, of any lurking prejudice which might be hanging about their minds. He must complain heavily of this conduct; and he appealed to his hon. and learned friends opposite, whether they ought not in candour to come forward and admit the irregularity of the trial. They ought not, because the individual offending was a poor unfriended being, to sanction a violation of that most sacred right, the trial by jury. He would ask either of those hon. and learned gentlemen to put a case to themselves. Supposing they had to conduct a prosecution for libel against two or more individuals, if a jury acquitted the first by negativing the fact of libel, would they go on with the same jury to the trial of the others? Could they do it with common regard to their professional characters? In the present case, a boy, not more than 17 years of age had fallen under the fangs of the Constitutional Society. He was unable, although he had applied to the clerk of the arraigns, to procure a list of the jury. That objection was taken at the trial, and overruled. The next course taken by the, prisoner was a course generally admitted, upon trials for misdemeanour. He believed that it was not usual in such cases to insist upon all the strict formalities of challenge; the mere statement that there was ground of objection to any of the jury, on the score of undue prejudice, was always held sufficient. Challenge upon that score was made in Barkley's case; but although it was accustomed to succeed in other cases, it failed in his. And, let the House look at the situation in which the jury as well as the prisoner were placed, by the improper course persisted in. In Barkley's ease, they took thirty-five minutes to deliberate before they found their verdict of guilty; in the former cases they had returned the same verdict without any deliberation at all. The very circumstance of this hesitation proved that they were in doubt; probably but for the sake of consistency, their verdict might have been the other way. As it was, the verdict was accompanied with a recommendation to mercy, and a sentence of six month's imprisonment only was passed upon the defendant. The hon. and learned member then proceeded to advert to the sentences passed upon the two other individuals tried for the same offence as Barkley. He understood that, to the already heavy sentence 1313 of imprisonment for two years—then to find sureties for good behaviour during life—the farther infliction of hard labour, had, on their entering the Poultry Compter, been added. Courts of justice certainly had the power of ordering that aggravation of punishment; but was it to be endured, that for the mere publication of opinions—of opinions upon subjects as to which almost all men differed—as to which, were it possible to dive into the hearts of gentlemen present, scarcely three of those gentlemen would be found upon all points to agree—was it fair, that for publishing his opinions upon such subjects, a man should be compelled, in addition to imprisonment, to labour for two years at an unwholesome employment? He had heard that there was, in truth, no occasion for the particular order for hard labour, inasmuch as that, when a man went to the Compter, hard labour followed of course. In the instance, however, to which he adverted, the order was distinctly given; for it was actually added, and by interlineation, to the sentence. The learned doctor went on to comment upon the mischievousness of prosecutions like those to which he had been alluding. When the House saw a man like Mr. Hone raised (merely by prosecution) from an obscure individual to a man known in every corner of England, Scotland, and Wales, could they do otherwise than lament to see any body of men so absurd and so wicked, as to erect themselves into a society for the assumption of powers which demanded the nicest discretion in their exercise, and which the policy of the law had vested in the Crown. With the fate of the petitioner was embarked the fate of one of the most sacred privileges of an Englishman.

The Solicitor General

said, with respect to the publication for which the petitioner was tried, that a more blasphemous and seditious libel never issued from the press of this country. Every person who had read the public prints of the day, was aware of the mischievous character of that infamous publication. It was openly declared by Mr. Carlile, the employer of the prisoner, that he would set the law at defiance—that nothing should prevent him from pursuing the career which he had commenced—that though he might be imprisoned, his family one after another, were willing to become martyrs in the cause for which he suffered; and that 1314 after they should be convicted, he would hire, at a low rate, persons who would bid defiance to the law, and those he would make the instruments of his purpose. It was well known that, for the purpose of defeating the law, the publications were sold through an aperture in a partition, no person being visible in the shop. It was well known that over the shop in question was publicly inscribed,—"This is the mart for sedition and blasphemy." This being known, it was the bounden duty of any individual who happened to have evidence against the persons engaged in this attempt to defeat the law, to proceed to bring them to justice. With respect to the society itself which had proceeded in this case he had nothing to do, he had nothing to say; but, whether society or whether individuals, it was the duty of those who possessed evidence to bring the guilty to justice. As to the conduct of the learned judge, it was true, that the defendant took an objection to the trial proceeding before the same jury that had tried another defendant for the same libel. Now he would put it to his learned friend, whether the judge had the power, without the consent of the counsel for the prosecution, to stop the proceeding merely on account of that jury having to try the cause. The judge told the defendant that he might put in a challenge either against any individual or to the array, but the defendant did not put in any such challenge, knowing, as any one acquainted with the law must have known, that there was no legal objection to the jury. The learned counsel was not taken by surprise; he had several days to determine the course to be taken; and he found that there was no legal objection to the jury. It was only necessary to refer to any passage of the libel, to spew that no jury could have come to a different decision. In one passage the writer said, "All religion I proclaim to be a vice in society, to be compared to the mythology of former times, which can consist only with an ignorance of the laws of nature, and is supported merely by the power of priestcraft." Was it possible for any twelve men to doubt that this was a libel? The only question, then, that remained for a jury was, whether the party accused had taken part in the publication; and as to that question, the jury could not be at all prejudiced by their previous decision. Another objection had been taken to the conduct of 1315 the judge; namely, that in a sentence for the offence of blasphemy, he had made hard labour a part of the sentence. That was not the case in the sentence of the petitioner. If the person intrusted to carry that sentence into effect had deviated from the terms of it, the prisoner would obtain redress in any court of law in England. But he apprehended that this would be found to be a mistake. When a prisoner was committed to a house of correction, the gaoler was authorized by the statutes regulating such places, in case the prisoner should demand the prison allowance, to set him, not to hard labour, but to such moderate labour as might earn that allowance, so that he might not be a charge to the country. No doubt, in another case, hard labour had been made part of the sentence, and the prisoner had been required to give his own security for his good behaviour during life. Now his learned friend would find that this had formed part of almost every sentence for blasphemy. Chief Justice Hale, who would not be considered a cruel judge, had in such a case not only sentenced the defendant to fine, imprisonment, and hard labour, but not merely to give his own security, but to find the security of others for his good behaviour for life. In the case of the King v. Williams, for a libel, which formed part of the libel in question, lord Mansfield inflicted a similar sentence, and indeed there was hardly a case of blasphemy, of the sentence of which hard labour had not formed a part. Thus much he had thought himself bound to give in way of explanation of the conduct of the learned judge, and he had endeavoured to abstain from intemperance or from the declamation in which his learned friend had indulged.